Pramod Kumar Naik v. Union of India & Ors

r V ./ X--" $-8 to 9, 12 to 13 and 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 5839/2015 RAHV RANJAN Decided on : 17.09.2015 Petitioner + + + Through: Mr Padma Kumar S,, Adv. versus UNION OF INDIA & ORS Respondents Through^Ms-SarojBidawat:,andMs Manisha,Advs. W.P.(C) 5853/a,015,-,. " "" SATENDR^M^lAN Petitioner N't. tf S., Ad^- % I a versus UNION OF INDIA cfe ORS W.P.(C)2664/foj55^>^,, RAJESHKUMARSINHA!^-=:^=^ Respondfents Petitioner r ThroughTMrPaidmaPtuniarS.,Adv. versus UNION OF INDIA AND ORS. Respondents Through: Mr R.Mishra and Mr M.K. Tiwari, Advs. And W.P.(C) 2667/2015 PRAMOD KUMAR NAIK Petitioner Through: Mr Padma Kumar S., Adv. W.P.(C)No. 5839, 5853, 2664, 2667 of2015 and 163 of2014 Page 1 versus UNION OF INDIA & ORS. ..... Respondents Through:MrR.MishraandMr M.K.Tiwari,Advs. along with Mr Arvind Sharma, DC, BSF And + W.P.(C) 163/2014 DEVENDER KUMAR VERMA Petitioner ThroughiMr:Prashant,Sivarajan,Adv. UNIONOF INDI^pr^l J ^ .".;%sponde|its 4-^" ..;Throijih:MryMiyekGoyalfijosi^r respondeniiv^- 'f afutdfeiS'cuo^vofHa«T7 f'j CORAM:f HON'BLl^MQfe JUSTICEilt® BHAT HON'BLE MS. JUSTICE DEEPA^SHARMA 1-1' . • f ri-p: :/ MR. JUSTICE S. RAVINDRA BlMr4(QBEN COURT) % The writ petitions are p For detailed judgment,, in W.P.(C) No. 5830/2015titledShoorvPSjh^^^piy^ Ots. may be referred r S. RAVINBRA ^JHAT

(JUi)G^54. ^ b DEEPA SHARMA (JUDGE) SEPTEMBER 17, 2015 BG W.P.(C)No. 5839, 5853, 2664, 2667 of2015and 163of2014 Page 2 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 17.09.2015 + W.P.(C) 5830/2015 SHOORVIR SINGH NEGI Petitioner Through: Mr Padma Kumar S., Adv. versus UNI0N0FINDIA^&6p."r,p,^ Respondents / f hrd^gliilV^s^ Ms Manisha, ,-p' --A'kvS. ^•'"1 . 'CJ*""v. /f vv "• ? / (r>y' . \ ' And ' ^ 'vC. 'K + W.P.(C)5fei26l5 I I • • I RAJIVI&NJAN • ''i, h'f/' ;J yetitioner Through "N^r PadmaKumarS., Adv W •5 »A -c^MasMo UNIONOF I^^^;^;^ORS - Respondents '<tjhr(iu|h'Ms^SarqjiBidawatand Ms Mani ^nd" ^ + W.P.(C) 5853/2015 SATENDRA MOHAN . Petitioner Through:Mr PadmaKumarS., Adv. versus UNIONOF INDIA& ORS Respondents Through:Ms SarojBidawatand Ms Manisha, Advs. W.P.(C)No.5830,5839, 5853,2664, 2667.of2015and163of2014 Page1 And + W.P.(C) 2664/2015 RAJESH KUMAR SINHA Petitioner Through: Mr Padma Kumar S., Adv. versus UNION OF INDIAAND ORS. Respondents Through: Mr R.Mishra and Mr M.K. Tiwari, Advs. + W.P.(C) 2667/20r5 ^ PRAMODpjMAR.. Petitioner V-ThroughrMr^ versus "i "I'l UNION OF INDIA & ORS • '• .....Respondents Through:'-1^r;R.Mis^^and Mr M.K.^Tiwari,Advs. A ,aion^i^itli|^fe Sh^ma,DC, BSF + W.P.(C) 163/2014 DEVENDER KUMAR VERMA Petitioner Through; Mr Prashant Sivarajan, Adv. versus UNION OF INDIA & ORS Respondents Through: Mr Vivek Goyal, CGSC for respondents along with Mr Arvind Sharma, DC, BSF W.P.(C)No.5830,5839, 5853,2664, 2667of2015 and163 of2014 Page2 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

¶1In all these petitions, the common grievance urged is that the petitionersare entitledto reckontheirseniorityandpensionableservicewith effect from the date they were declared as successfiil candidates in the originalselectionprocessin which,th^y.-participatedThe facts pertainingto W.P.(C)Nos.5830/2015;'5839/i0V5;'5853/20y726^4/2015and 2667/2015 are commoninasrijuclias the ^petitioners^hadiparticipiatedin^therecruitment process and were declaredsuccessfulfor the examinationlield in the year 2000. .V . / •. . ,. 'i • • ' \ . t •>'. I.

¶2It is contendedthat the position taken by the Border S^fecurityForce

(BSF)—themaiiirespondent—in^lMi^^Miioritywitheffectfromthe date of continuousseryicebased-upoiiits inteipretatioii,of Rule,8 of the Border • "" " r-v' Security Force Ruleis,200fjs untenable. v /

¶3The brief facts nccessaryfor decidingthe.cases are that all petitioners were declared successful in the recruitment process in, which they originally participated—mostlyin the year 2000. Apparently,the examinationwas held in 1999 and the results were declared thereafter the next year. The petitionerswere initiallydeclaredunfit for one reason or the other. When they were declared fit, the petitionersjoined the concernedbatch/batches accordingto the availabilityof vacanciesin the batch of training.The facts relating to W.P.(C) No.5830/2015 are that the writ petitionerwas found unfit on account of knock knee on 16.03.2002. After his Review Medical W.P.(C)No.5830,5839, 5853, 2664, 2667of2015 and 163 of2014 Page3 M Board on 17.01.2003, he was declared fit. He thereafter joined in the year 2004. In W.P.(C) No.5839/2015, the petitioner was declared medically unfit on 11.02.2002 on account of hydrocele. He apparently underwent surgery and was subsequently declared fit. However, he could not immediatelybe appointed because there was a discrepancyin the name as between the certificateproduced by him and name disclosed in the applicationform. Ultimately,he couldjoin onlyin January,2005. In W.P.(C)No. 5853/2015, the petitionerwas declaredunfiton accountofhypertensionand obesity.On examinationby the Review B6ai;drrQnjjl8,Q6^^ he was declaredfit; he too joihedvthe'service,later sometimein 2004. In W.P.(C) No.2664/2015,the?petitibnerwas declared,unfiton accountof hydrocele.On account of the .subsequentcorre9tive surgery, he was examined by the ReviewMedicalBoardwhichdeclaredhim on 16.01.2003.Rejoinedthe BSF subsequefitlyin the later [batch>j^In W.P.(C) No. 2^67/2015, the petitionerwas declaredmedicallytiniitl^nf of ear problemChronic SuppurativeOtitis;Media;(eO.^S^^ subsequent"R^ MedicalBoard in February,2003 deciafedhim fit. He was subsequentlyappointedin 2004. The facts ofW.P.(C)No.r64/2dr5are somewh There appearsto be an error in the medical examinMion as it was declared that he did not fulfil the requiteheightstandardand was shortby 0.5 centimetre.The result of the Medical Board was declared on 25.01.2002. The petitioner sought review medical examination which was done on 17.04.2002. He was declared fit on 11.11.2002 and he subsequently joined the BSF.

¶4All the writ petitionerscontendthat on account of the respondent's fault, they were kept away from employmentand consequentlymade to report in subsequent batches—^not along with other recruits who were W.P.(C)No.5830,5839, 5853, 2664, 2661of2015 and 163 of2014 Page4 appointed in earlier batches. In other words, the petitioners joined subsequent batches of training unlike those who had participated in the year 2000 selection/recruitment process. This was not on account of their fault, but the BSF's own processes. It was submitted that consequently the interpretation placed upon Rule 8(2) and 8(3) to deny them the seniority at par with their batchesoriginallyjoined,is arbitrary.Learnedcounselfor the petitioners relied upon the decision of this Court in Naveen Kumar Jha vs. Union ofIndia, W.P.(C)7Vo.5<527/207^(decidedon 02.11.2012).The Court on that occasion had relied upbri.a-decision.of this Court's earlier ruling in Avinash Singh V5. Union India <& Ors. W.P. (C}No.5.400/2010,(decided on 26.05.2011). the Court in Avinash Singh fsw/'ra):,highlightedas follows:- ^ A "17. It is settled law that if appointment is by selection, seniorityjbfthe entirebatcl^lia^ reckonedwith respectto the merit\position obtained in tlie selection and not on the fortuitous circumstance on the d^te on whiph.a person i5 made tojoin. '

¶18We highhghtjnthemstantcase-thejorfuftouscircumstance of the petitionersbeing madVto-joiliiasAssi^ Commandant on 08.08.2005 is not the result of arijnthing created by the petitioners but is a result of a supine indifference and negligenceon the part of the ITBP officials.

¶19Thus, petitioners would be entitled to their seniority as Assistant Commandant with respect to their batch-mates in the context of the merit position in the select panel. We make it clear, the seniorityas Assistant Commandantof the entire batch would be a reflection of the merit position in the select list and not the date of joining." W.P.(C)No.5830,5839, 5853,2664, 2667of2015 and 163 of2014 Page5 A^

¶5In Naveen Kumar Jha (supra), after noticing the above observations, the Division Bench directed as foliows:- "11. On facts it needs to be noted that the seven petitioners of WP(C) No.5400/2010 had lost out on their seniority with reference to their merit position in the Select List due to delay in conducting their Review Medical Evaluation and in the interregnum their batchmates had joined ITBP.

¶12On parity of reasoning and applicationof law the petitioner is held entitled to his seniority being refixed as a Sub-Inspector in CRPF with reference ^o \psf merit .j^sition at the SSC Combined Graduate:; Level 2000 Examination i.e. those who joined CRPF^'pursuantto the said examination'ih,]^a.rch2003. The petitiqner^tias already earned promotion to-the^post of Inspectorandlaccordinglywe directthat he wouldIje entitledto seniority refixed in said rank with reference to his revised seniority;positionin the rank';,ofSub-Inspector,and this|would mean thatthe petitionerwouiH be consideredfor promotionto the post of,AssistantCommaiidant'asper the revisedseniority list. '

¶13The respondents «.are therefore direc the seniorityposition of.the^petitio»nefrm^;thej^ranks within a period of four weeks from.-today consider the petitioneralongwith othereligiblepersonsfor promotionto the post of Assistant Commandant."

¶6It is also argued that the petitioners cannot be made to suffer with respect to pensionarybenefits on account of the fact that the delay was caused by the respondentsin issuingthe appointmentletters. Having been declared fit by the Review Medical Board in all cases in 2002-2003,the fortuitouscircumstancethat the appointmentletters led to theirjoining after thenew pensionschemecame into force couldnot deprivethem ofthe more W.P.(C)No.5830,5839, 5853,2664, 2667of2015 and 163 of2014 Page 6 beneficial provisions of the older pension scheme which ended on

31.12.2003. In support of this argument, learned counsel relied upon Naveen Kumar Jha (supra).

¶7Learned counsel for the respondents relied upon an earlier Division Bench ruling of this Court in Roop Ram Kundu vs. UOI & Ors. W.P.(C) No.3342/1999 (decided on 16.08.2012). In that case, the petitioner had been declared temporarily unfit and was subject to another medical examination conducted later. He had overcome the-medical problem from which he was temporarily suffering and was subsequentlyfdeclared fit barely two months after the original d^laration of unfitness. The Court,rejected the claim for seniority based upon the"original results and stated as follows;- "6. Thus? any challenge to. petitioner's temporary inedical unfitness!fas per the review,vmedicalboard became a matter which no1longer is capable of' being adjudicated upon by any Court.

¶7However, taking into account that the petitioner was being declared temporarily medically unfit, the authorities subjected the petitioner to another medical examination which was conducted in July 19, 1996. The petitioner had overcome the medical problem from which Hefwas temporarily suffering. He was opined to be medicallyfit and accordinglyan appointment letter dated September 17, 1996 was issued.

¶8Now, the petitioner prays that he be accorded seniority as per his merit position obtained at the examination with all consequential benefits.

¶9Suffice would it be to state that as per Rule 19 of the BSF (Subordinate Officers and Under Officers) Promotion and Seniority Rules 1975, seniority in any rank has to be deteraiined on the basis of continuous regular appointment in that rank. W.P.(C)No.5830,5839, 5853,2664, 2661of2015and 163of2014 Page 7

¶10Being repeatedly declared temporarily medical unfit, till he was declared fit in September, 1996 resulting in appointment letter being issued oh September 17, 1996, would require petitioner to be placed with respect to seniority, not with reference to the merit position which he had obtained when the examination was conducted in the year 1992 more so for the reason W.P.(C) No. 149/1996 filed by the petitioner stands dismissed in default and revival whereof has not been prayed for." .

¶8The Border Security Force General Duty Cadre (Non-Gazetted) Recruitment Rules, 2002, to the extent they are relevant, are extracted below:- ' ' - ' "8. Seniorily-;-(l)Persons:holdinga higherrdnk'whetherin an officiating or substantive capacity shall be senior to the persons holding a lower rank. A

(2) Seniorityin any rank shall be)determinedon the bjasis of continuous regular appointment ,in,that rank. Provided that the seniority of the personnel holding the same rank and promoted?on the;samei^^day^;s^ be determined in accordance with the: order of selection for appointment to that ^ post. • 5-:;.-.,-,-, •

(3) Subject to the provisions, of" sub-rule (2) seniority of direct entry Sub-Inspector shall be deten^ed in accordance - with merit of their selectionlhrough Staff Selection Board. Provided that the persons selected on an earlier batch will be senior to those selected in subsequent batches. Provided further that the seniority of Constables/Head Constables selected under Limited Departmental Competitive Examination Scheme as Sub-Inspector against reserved quota shall be determined in accordance with their merit of selection fV.P.(C) No.5830, 5839, 5853, 2664, 2667 of2015 and 163 of2014 Page 8 and shall be placed below the Sub-Inspector (Direct Entry) batch with whom they join training."

¶9The petitioners highlight Rule 8(3) to say that seniority of direct entry Sub-Inspector would be determined in accordance with the merit of their selection through Staff Selection Board. Although this argument is attractive, the fact remains Rule 8(3) expressly states that it is ''subject to provisions of sub-rule (2)". This in turn means that the primary rule is ''continuous regular appointment in that rank". This Court is of the opinion that the question of an individual bemg appointed to the rank" would imply his joining the cadre. In all these caseS, the petitioners do not dispute that they had joined the; cadre or the concerned post only after they were declared medically fit by the Review Medical Board—in 2003. Though they were initially declared successfulin the recruitmentprocess,|their medical conditionsconstituteda barrierfbr^their entry into the servic^^That barrier was lifted on account of their overcoming unfitness and the subsequent determination of the Review Medical Board. Obviously therefore, they joined and started continuously working in the post of Sub-Inspector from the later dates. This interpretationis supporfedby the judgment in Roop Ram Kundu (supra)—a proceeding initiated as far back as in 1999 when the petitioner claimed seniority of merely three months. He was initially declared temporary unfit in July, 1999, but was subsequently declared successful in September, 1999. In the interregnum in Roop Ram Kundu (supra), the original batch to which he belonged had already joined the training. He was, therefore, directed to join the subsequent batch. This Court is of the opinion that the BSF's position cannot be faulted given the fact that he entered the cadre or joined the post subsequently. W.P.(C)No.5830, 5839, 5853, 2664, 2667 of2015 and 163 of2014 Page 9 Hy

¶10At some stage, counsel in one of the proceedings W.P.(C) No. 163/2014, relied upon the order in Ram Pal Deshwal V5. UOI & Ors. W.P.(C) No.393/2008 (decided on 07.03.2011) to state that Rule 8(2) is really meant for regulating seniority of promotees. In Ram Pal Deshwal (supra), the Court observed as foliows:-

¶14Suffice would it be to state that sub-rule (2) would apply in case of promotion and where the promotion is ad-hoc, temporaiy or stop-gap i.e. fortuitous, seniority would rank on the basis of continuous regular employment. The proviso to sub-rule

(2) makes clear the ambit of the sub-rule. The proviso deals with promotions and carves out an exception to what is contemplated by sub-rule (2). The proviso, therefore, highlights the ambit of sub-rule (2)a ', '

¶11This Court is. of the opinion?that'8(1) firstly states a general principle, i.e., those holding higher rank whether in an officiating or "1/ jV- \i I - I' 'V •! j substantive capacity would be senior to/persons those holding,a lower rank. Rule 8(2) then .prescribes a ;ppiiciple of universal application, i.e., the senioritv in any iank-fee basis of continuous regular appointment in that faiilc; Thirdly, the proviso of Rule 8(2) states that the seniorityofthe two iridiyi%aishoidiiigthe sam^^ "andpromotedon the same day" shall be determined in accordance with the order of selection for appointment to that post. In other words, the provision carves out an exception from the general rule prescribed in Rule 8(2) of seniority on the basis of the regular appointment to the rank. The exception is that in case of promotees, the seniority is to be determined "in accordance with the order ofselection for appointment to that posf \ However, the proviso is silent,as to the matters left out which are part of the main provision, i.e.. Rule 8(2). The corollary irresistibly, therefore is that Rule 8(2) applies for other W.P.(C) No.5830. 5839, 5853, 2664. 2667 of2015 and 163 of2014 Page 10 categories, i.e., direct recruits. If one were to construe Rule 8(2) in this manner, the mandate of Rule 8(3), i.e., that seniority of direct entry Sub-Inspector would be determined in accordance with the merit of their selection, is a rule to guide inter se merit of those who are appointed in the same selection process. However, it would not in any way disturb or detract from the application of Rule 8(2), i.e., the seniority in the rank has to be determined on the basis of continuous regular appointment.

¶12This Court does not read proviso to Rule 8(2) in the manner sought to be urged or as appears to have been readyinRam Pal Deswal (supra). This is for the simple reason that, the provision carves out an exception only for promoteesandits ititendmentcaimoitibeextendedbeyondwhat is prescribed. (see S.SundaramPillai vs. Vk^^abimrhan,1985 SCR (2) 643 for the effect ofoperatidn ofproviso). V;

¶13Respectfully,we differfroni'NaveeniKumarJha (supraf^din^Avinash Singh (supra)as we find thatno 'ciiscussim^^^ a rule akin to Rule 8has been made in these judgments. In ouir-opiiiiori^^M of the question of how senioritymust be calculated for the present petitioners. We are also mindful that interferihg'in^the rhanher sought will upset already settled seniority lists and affect persons who are not parties before us. We prefer instead the view taken in Roop Ram Kundu (supra), a decision that was not brought to the notice of the court in either Naveen Kumar Jha (supra) oxAvinash Singh (supra).

¶14In view of the above discussion, we are of the opinion that the petitioners claim for seniority from the date their batch mates or original batch mates who were otherwise appointed in the nonnal circumstances in 2000-2001 carmot succeed. W.P.(C)No.5830,5839, 5853, 2664, 2667 of2015 and 163 of2014 Page 11

¶15As far as the claim for pensionary benefits based upon the old pension scheme which ended on 31.12.2003 is concerned, we are of the opinion that a somewhat different result would have to follow. Undoubtedly, all the petitioners were declared medically fit by 2003. However, they could not be issued with appointment letters and joined subsequently in 2004 or 2005. It is here that the observations in Avinash Singh (supra) quoted with approval in Naveen Kumar Jha (supra) become relevant. Although the petitioners were declared fit earlier—at least much before the cessation of the old pension rules, there was .aif^ministrative^efe^&Jn the issuance of tK "i appointment letter asfEing them'^to jmn^aimng; In^thesp circumstances, im the interests of justihe^^^we hol^t%^fhe^s;^ouM be erit|tledl^ the benefits of the old pension slie^ ;

¶16The writ .petitions are alloA^ed^d^lUfo the above extent' i.e., that the I petitioners are entitled to the benefits 01|tne|old pension scheme' No costs. I I ■''U JgSik B i? I fl ■ -o; '^S/RAVINDRA BHAT (JUDGE) DEEPA SHARMA (JUDGE) SEPTEMBER 17, 2015 BG W.P.(C) No.5830, 5839, 5853, 2664, 2667 of2015 and 163 of 2014 Page 12